filed: February 6, 1981.
ROBERT DEGREGORIO AND JOANN DEGREGORIO, HIS WIFE
ICE SKATING RINK CLASS OF 1923 AND UNIVERSITY OF PENNSYLVANIA, APPELLANTS
No. 1411 October Term, 1978, Appeal from the Order of the Court of Common Pleas of the County of Philadelphia, Trial Division--Law, at January Term 1976, No. 4099.
Joseph H. Foster, Philadelphia, for appellants.
Jeffrey M. Stopford, Philadelphia, for appellees.
Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham and Brosky, JJ. Price, J., files a concurring statement in which Cercone, President Judge, joins. Cavanaugh, J., files a dissenting opinion. Spaeth, J., did not participate in the consideration or decision of this case.
[ 284 Pa. Super. Page 218]
On January 29, 1976, Robert DeGregorio and Joann DeGregorio, appellees herein, filed a complaint in trespass alleging that the husband-appellee had sustained injuries from a fall while ice skating on premises owned and operated by appellants, Ice Skating Rink Class of 1923 and the University of Pennsylvania. Interrogatories filed by appellees and served upon appellants were not answered, and appellees caused a default judgment to be entered against appellants pursuant to Philadelphia Civil Rule 4005(d). Appellants subsequently filed a motion to strike the judgment on the grounds that notice required by the local rule had not been given. The trial court denied this motion to strike, and this appeal followed.
The appeal was heard by a panel following which we granted reargument before our court en banc.
In a case filed this date we have considered the impact of Gonzales v. Procaccio Bros. Trucking Co., 268 Pa. Super. 245, 407 A.2d 1338 (1979) upon Philadelphia Civil Rule 145 [formerly Philadelphia Civil Rule 4005(d)] and for the reasons
[ 284 Pa. Super. Page 219]
stated therein we reverse the order of the lower court and strike the judgment entered on behalf of appellees.*fn1
PRICE, Judge, concurring:
I concur in the order reversing the lower court for the reasons stated in Judge Spaeth's concurring opinion in Tice v. Nationwide Life Insurance Co., 284 Pa. Super. 220, 425 A.2d 782 (1981).
In this case, as in Tice, a motion to strike a default judgment entered under Philadelphia Civil Rule 145 had been denied by the lower court and was on appeal in this court at the time of our decision in Gonzales v. Procaccio Bros. Trucking Co., 268 Pa. Super. 245, 407 A.2d 1338 (1979). As in Tice, appellants here had not argued the invalidity of Rule 145 in the lower court. However, as Judge Spaeth explained in his opinion in Tice, I believe that we should give appellants the benefit of Gonzales, and that the policy reasons for holding that an argument not made in the lower court is waived do not apply here.
CAVANAUGH, Judge, dissenting:
Although the circumstances of appellants in the instant case differ somewhat from the appellant in Tice v. Nationwide Insurance Co., 284 Pa. Super. 220, 425 A.2d 782 (1981), which is being filed today, I conclude that the same reasoning applies.
The only issue appellants raise here is one which was never presented to the lower court. Hence, I would hold, as more fully explained in my dissent in Tice, supra, that the issue has not been preserved for our review.
[ 284 Pa. Super. Page 220]
Again as in Tice, supra, I point out that nothing the court says today precludes the lower court on remand from properly imposing sanctions pursuant to Pa.R.C.P. 4019.
I dissent; I would affirm the order below.